MUNICIPAL CORPORATION OF DELHI Vs. RAVINDER KUMAR GUPTA
LAWS(DLH)-1983-3-12
HIGH COURT OF DELHI
Decided on March 06,1983

MUNICIPAL CORPORATION OF DELHI Appellant
VERSUS
RAVINDER KUMAR GUPTA SINCE DECEASED REPRESENTEDBY HIS LR'S Respondents


Referred Judgements :-

THE MANAGEMENT OF DELHI TRANSPORT UNDERTAKING V. SHRI B.B.L. HAJELAY AND ANOTHER [REFERRED 3.]
MUKHTIAR SINGH V. N.N. TANDON CWP 237 OF 1965 DATED 3-2-1972.5. RAM CHANDER SINGH V. MUNICIPAL CORPORATION OF DELHI AND OTHERS [REFERRED TO]
MANAGEMENT OF DELHI TRANSPORT UNDERTAKING VS. B B L HAJELEY [REFERRED]



Cited Judgements :-

S.K. SAINI AND ORS. VS. C.B.I. [LAWS(DLH)-2015-8-226] [REFERRED TO]


JUDGEMENT

S.B. Wad, J. - (1.)This Second Appeal is filed against the/order of the Small Causes Court, Delhi, (Shri B.N. Chaturvedi) in R.CA. No. 25 of 1980. Through the said judgment/decree, the judgment and decree passed by the Sub-Judge 1st Class (Shri S.L. Khanna) on 3-5-1976 was upheld and the appeal was dismissed. Three preliminary questions are raised by the respondent here. They are:
(1) That the appeal was barred by limitation;

(2) That the respondent had died on 26-12-1983 and his legal heirs were not brought on record within the prescribed time and the appeal had abated; and

(3) That the appeal does not/raise any substantial question of law being a Second Appeal.

(2.)When the present appeal was filed application seeking exemption from filing the certified copy of the trial court's judgment was not filed. The the High Court Rules prescribe mandatorily that the certified copy should be filed alongwith the appeal memo. On 23-3-1981 when the appeal was admitted this court directed that the certified copy of the judgmant of the learned trial Court to be filed within time. the certified copy of the trial court's judgment was applied for on 6-9-1980. The copy was ready on 2-2-1981. Therefore, when the matter was admitted in this court the certified copy was already ready. In fact, more than one and a half months had elapsed since then, but the appellant did not care to collect the copy and to file the same in the court before the matter was admitted by this court. In spite of the fact that the copy was ready on 2-2-1981, an exemption from filing the certified copy of the trial court's judgment was secured from this court. If it was disclosed to the court that the copy was ready on 2-2-1981, the court would not have passed the order. Even thereafter the certified copy was filed on 30-3-1981. Thus there is a delay of forty-five days and there is no application for condonation of delay. The appeal is, therefore, patently beyond the period of limitation and is dismissed on that short ground.
(3.)The second ground of abatement is equally fatal. C.M. 624 of 1984 is an application filed on 27-4-1984 under Sections of the Limitation Act praying for the permission to move an application for bringing the legal heirs on record. As stated earlier, the respondent had died on 26-12-1983. The application merely prays for the permission of the court to file an application for bringing the legal heirs on record. The application is not for setting aside abatement The application states :
"It was only when this letter was received by the counsel on 16th April, 1984 that the Counsel came to know about the misplacing of the previous letter. However, the counsel for Respondent has not informed the court."
The earlier part of the application states that when the appellant-corporation came to know about the death of the Respondent they sent a letter to their Counsel for taking steps in regard to the bringing of the legal heirs of the respondent on record. The letter was received by the Clerk of the Counsel and was misplaced. This application was sought to be amended by asubsequent application which in fact made the matter worse because alongwith that application the correspondence between the counsel and the Corporation is filed. The correspondence shows that the counsel had the knowledge before 16-12-1984 but no expeditious steps were taken in the matter. Thus instead of the application being moved within 90 days it was moved after 92 days. Thus there is a delay of two days. From the correspondence it is seen that the appellant-Department had taken all the steps and precautions to inform the Advocate about the date of death and bringing the legal heirs on record. The negligence is in the office of the Advocated. I would have, in such circumstances, condoned the delay of two days and set aside the abatement but there is no merit on any point in this appeal and I am, therefore, not inclined to exercise my discretion in favour of the appellant. In fact, there is no application for setting aside the abatement also.
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